The entrance of the International Criminal Court (ICC).

© 2011 Reuters

(New York) – Member countries of the International Criminal Court (ICC) should provide the court with the support necessary to deliver justice for the world’s worst crimes, Human Rights Watch said today. The ICC faces a higher demand than ever following the addition of investigations in Libya and Côte d’Ivoire to the court’s workload in 2011.

The annual session of the Assembly of States Parties will begin on December 12, 2011, at the United Nations headquarters in New York. The 119 member countries, including four new members, will take part. During the session, ICC members will elect the next ICC prosecutor, a milestone in the court’s development.

“For many victims of mass atrocity the ICC symbolizes the last best hope for justice,” said Elizabeth Evenson, senior international justice counsel at Human Rights Watch. “ICC members should use this meeting to ensure the court has what it needs to get the job done.”

Negotiation of the court’s annual budget is likely to top the session’s agenda. Economic pressure on national governments has led to demands from some countries for “zero growth” in the court’s budget. While court officials should ensure that resources are spent wisely, zero growth would not support the court’s workload, which has nearly doubled in the last two years, Human Rights Watch said.

Human Rights Watch said proposed efforts to cut costs by reducing some court activities – like outreach to affected communities – should be rejected. ICC members have long supported such activities as key to ensuring that justice is not only done, but seen to be done by the victims of the serious crimes it addresses.

“The ICC is straining under its caseload,” Evenson said. “ICC members should help the court do its job better, but arbitrary cuts to the budget are shortsighted at best.”

On December 12, the assembly is expected to elect Fatou Bensouda by consensus to succeed the court’s first prosecutor, Luis Moreno-Ocampo, whose term ends in June 2012. Bensouda, a Gambian who is the ICC’s deputy prosecutor, was tapped following a search process that considered more than 50 candidates. The search committee established by the assembly conducted an extensive, merit-based search that should provide lessons for future elections, Human Rights Watch said.

ICC members will also elect six new judges. Human Rights Watch urged governments to nominate and elect candidates who have extensive experience managing criminal trials and who are committed to the hard work necessary to fulfill the court’s mandate. This means rejecting the traditional vote swapping practices among countries for candidates. This shift is essential to ensuring the court has the most highly qualified bench possible, Human Rights Watch said.

Human Rights Watch also called on ICC members to bolster their joint efforts to cooperate with the court by providing various forms of assistance. The ICC relies on governments to enforce its decisions and arrest warrants and to assist its investigations and prosecutions. The assembly should assess the effectiveness of these efforts and how to improve them at each annual session and year-round through a permanent working group on cooperation.

Governments should also increase their public expressions of support for the ICC, Human Rights Watch said. The court continues to face backlash over its arrest warrant for President Omar al-Bashir of Sudan. The ICC’s higher profile has also attracted efforts by governments to manipulate the court’s mandate for political ends.

“The ICC is a judicial institution and cannot be switched on and off to suit political preferences,” Evenson said. “ICC members and court officials should speak up to insist that justice be allowed to run its independent course.”

At the meeting, the governments will consider adopting measures to respond to instances in which member countries breach their cooperation obligations. This follows the visits by al-Bashir to some ICC countries without facing arrest. The proposals to address this issue are helpful in supporting the court’s work, Human Rights Watch said. Joint efforts by the assembly president, governments, and civil society have helped to avoid visits by al-Bashir to some ICC countries, including Kenya, Central African Republic, and Zambia.

In a memorandum issued to governments in November, Human Rights Watch called attention to other issues likely to be discussed. These include strengthening the Assembly of States Parties’ capacity to promote joint efforts to improve national-level trials of ICC crimes. The ICC only acts in cases in which national courts are unable or unwilling to hold credible trials at home, and its reach is limited to a handful of cases. The assembly should step up its efforts to facilitate increased assistance between governments and by development assistance programs.

Human Rights Watch also called for a framework to ensure follow-up to the pledges of concrete, increased assistance to the court made by governments during the ICC review conference held in Kampala, Uganda in May and June 2010. Human Rights Watch urged governments to report on progress in carrying out these pledges and to make new pledges of support during the December meeting.

Background
The ICC is the world’s first permanent court mandated to bring to justice people responsible for war crimes, crimes against humanity, and genocide when national courts are unable or unwilling to do so. The 10th anniversary of the entry into force of the ICC treaty, the Rome Statute, will be in 2012. The treaty entered into force just four years after 120 states adopted the treaty during a conference in Rome in 1998.

The Assembly of States Parties was created by the Rome Statute to provide management oversight of the administration of the court. It consists of representatives of each member state and is required to meet at least once a year but can meet more often as required. At the December 2011 session, ICC members will elect a new president of the assembly. Ambassador Tiina Intelmann of Estonia is expected to succeed Ambassador Christian Wenaweser of Liechtenstein, who has served as the assembly’s president since 2008.

The court’s jurisdiction over alleged international crimes may be triggered in one of three ways. ICC member states or the UN Security Council may refer a situation, meaning a specific set of events, to the ICC prosecutor, or the ICC prosecutor may seek on his or her own motion authorization by a pre-trial chamber of ICC judges to open an investigation.

The ICC prosecutor has opened investigations in the Central African Republic, Côte d’Ivoire, the Darfur region of Sudan, Democratic Republic of Congo, Kenya, Libya and northern Uganda. Based on those investigations, there are 13 pending cases against 24 individuals. The prosecutor recently sought to open an additional case in the Darfur situation.

The prosecutor is also examining a number of other situations in countries around the world. These include Afghanistan, Colombia, Georgia, Guinea, Honduras, Nigeria, and South Korea. The Palestinian National Authority has also petitioned the ICC prosecutor to accept jurisdiction over crimes committed in Gaza and the West Bank.

Six people are in ICC custody in The Hague, including the former president of Côte d’Ivoire Laurent Gbagbo, the first suspect arrested in the prosecutor’s investigations there. Gbagbo was transferred to ICC custody on November 29.

Three others accused of war crimes in connection with an attack on African Union peacekeepers in Darfur appeared voluntarily during pretrial proceedings. The ICC’s pretrial chamber declined to confirm charges against one of the three, Bahr Idriss Abu Garda; trial of the other two suspects is expected in 2012. Six Kenyans – including prominent political leaders affiliated with both sides of the 2007-2008 election violence – have also appeared voluntarily before the court. Decisions as to whether to send the cases to trial are expected in early 2012.

A verdict in the court’s first trial – of the Congolese militia leader Thomas Lubanga Dyilo on charges of using child soldiers – is also expected in early 2012. The trial of Jean-Pierre Bemba Gombo, a former Congolese vice president, rebel commander, and opposition party leader, on charges of crimes committed in neighboring Central African Republic is ongoing, as is the joint trial of Congolese militia leaders Germain Katanga and Mathieu Ngudjolo Chui. In addition to Gbagbo, these four individuals are in ICC custody in The Hague, as is Callixte Mburashimana, who is awaiting a decision from the pre-trial chamber as to whether the case against him – for crimes against humanity and war crimes allegedly committed in 2009 during the armed conflict in the Kivus region of the Democratic Republic of Congo – will be sent to trial.  

Al-Bashir and two others sought for crimes in Darfur remain fugitives. Arrest warrants are also outstanding for leaders of the rebel Lord’s Resistance Army from Uganda; Bosco Ntaganda, a former rebel commander now integrated into the Congolese national army; and two suspects in the Libya situation, Saif al-Islam Gaddafi and Abdullah Sanussi. ICC judges terminated the case against the former Libyan leader Muammar Gaddafi after he was killed on October 20.